West Virginia Asbestos Mass Trial: Efficient Innovation or Constitutional Violation? Aside from Denying Due Process, the Concept Has Unintended Consequences by Attracting More Cases and Draining Court and Damage Resources

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ASBESTOS litigation has spurred innovations in civil procedure as courts and parties have struggled to manage the number of claims pouting into the courts. (1) The West Virginia judiciary attempted to deal with the "elephantine mass of asbestos cases" through the adoption by the state's Supreme Court of Appeals of an innovative trial management procedure, embodied in its Trial Court Rule 26.01, known as TCR 26.01, which led to the "mass trial" concept. (2)

From the perspective of its first application in In re: West Virginia Asbestos Personal Injury Litigation ("Asbestos Mass Trial"), the mass trial was successful in clearing the queue in court, but that search for efficiency was achieved at the cost of fundamental fairness, leading to constitutional violations of due process and federalism. (3)

MASS TRIAL PROCEDURE

In 2001, in State ex rel. Allman v. MacQueen, (4) the West Virginia Supreme Court of Appeals explained that asbestos cases threatened to cripple the common law system of adjudication because of the volume of cases, as the disposition of all currently pending asbestos cases, if treated in the traditional course of litigation, was expected to require approximately 150 judge years. (5) It concluded that as Congress had not created any legislative solution to the problem, courts were forced "to adopt diverse, innovative, and often non-traditional judicial management techniques to reduce the burden of asbestos litigation that seems to be paralyzing their active dockets." (6)

The court had created TCR 26.01 in 1999 under its supervisory powers, finding conventional consolidations inadequate for dealing with the volume of asbestos cases filed in West Virginia. (7) The mass trial is not a single method of aggregation, but rather a procedure by which alternatives to case-by-case trials can be examined and appropriate trial management plans developed. In furtherance of this goal, TCR 26.01 established and governed the operation of a Mass Litigation Panel (MLP) composed of West Virginia trial court judges.

The MLP was charged with the responsibility to "develop and implement case management and trial methodologies for mass litigation and to fairly and expeditiously dispose of civil litigation which may be referred to it" by the West Virginia chief justice, and to "make recommendations to the chief justice on the transfer of actions from one circuit to another in order to facilitate any case management or trial methodologies developed by the panel."

Mass litigation is defined by TCR 26.01(c) as two or more civil actions pending in one or more circuit courts

(a) involving common questions of law

or fact in mass accidents or single catastrophic events in which a number of people are injured; or (b) involving common questions of law or fact in "personal injury mass torts" allegedly incurred upon numerous claimants in connection with widely available or mass-marketed products and their manufacture, design, use, implantation, ingestion, or exposure; or (c) involving common questions of law or fact in "property damage mass torts" allegedly incurred upon numerous claimants in connection with claims for replacement or repair of allegedly defective products, including those in which claimants seek compensation for the failure of the product to perform as intended with resulting damage to the product itself or other property, with or without personal injury overtones; or (d) involving common questions of law or fact in "economic loss" cases incurred by numerous claimants asserting defect claims similar to those in property damage circumstances which are in the nature of consumer fraud or warranty actions on a grand scale including allegations of the existence of a defect without actual product failure or injury.

The procedure is triggered by the filing of a "Motion to Refer to Mass Litigation Panel" by any party, judge or the state's administrative director of the courts. …